Delhi District Court
That On 19.12.2017 At About 01.15 Pm At ... vs State Of Punjab on 4 December, 2018
IN THE COURT OF MS.PURVA SAREEN,
ADDITIONAL CHIEF METROPOLITAN MAGISTERATE
SOUTH, SAKET COURT, NEW DELHI
State v. Vivek @ Vicky
FIR No.935/17
PS Uttam Nagar
U/s 356/379 IPC
JUDGMENT
Date of Institution : 06.02.2018
Name of the complainant : Rahul S/o Sh. Vijay Kumar
Name & address of the accused : Vivek @ Vicky S/o Sh. Vijay Kumar
R/o Jhuggi No.420, Kali Basti, Hastsal,
Uttam Nagar, New Delhi
Offence complained of : 356/379 IPC
Plea of accused persons : Pleaded not guilty
Final Order : Convicted
Date of reserve for judgment : 29.11.2018
Date of announcing of judgment : 04.12.2018
The case of the prosecution in brief is as under :-
1. That on 19.12.2017 at about 01.15 pm at DDA Park, Hastsal, Near Govt Senior Secondary School, Janta Flat, Uttam Nagar, New Delhi accused along with his associate committed theft of phone of the complainant after assault and snatched the mobile phone. Thereafter, complaint was made and police arrived at the spot and after investigation the charge sheet was filed before the court.
State v. Vivek @ Vicky Page 1 FIR No.935/17 PS Uttam Nagar
2. The charge sheet was filed against the accused u/s 356/379 IPC. Accused was produced from JC. Complete set of documents was supplied to the accused. Prima facie charge u/s 356/379 IPC was framed against the accused to which he pleaded not guilty and claimed trial. Thereafter, the matter was listed for prosecution evidence.
3. The prosecution in support of his case examined four witnesses as under :-
(i) PW1 Rahul was the complainant who deposed before the court that on 19.12.2017 he was going to home from his school i.e. Govt. Boys Senior Secondary School, Hastsal. He was talking on his phone and he had reached near DDU park. When suddenly three boys came from behind and the accused Vivek ran away with his phone. The accused threw the phone to one of his associates and the other two run away while he caught hold of the accused. Many public persons gathered and one of the accused associates beat him after which the public persons caught hold of the accused. Police was called. Police took the accused in the car. His statement was recorded. His snatched phone was of the brand Oppo A37. He had given the bill to the police.
Witness correctly identified the accused before the court. In his cross examination by learned LAC for counsel, it was stated by witness that his school started from 12:30 pm and went on till 06:00 pm. He was not allowed to take phone to the school. The park was about 2 kms from the school. His home was about 3 kms away from the park. His phone was in his left hand while he was talking on the phone. Three persons had come from behind walking. They State v. Vivek @ Vicky Page 2 FIR No.935/17 PS Uttam Nagar snatched his phone and ran away. He covered around 20 meters before he caught hold of accused. Initially, he alone had caught hold of him and thereafter, public persons had also gathered. His friend had come after the incident had happened. It was around 2 feet when the accused had given the phone to his friends. He did not chase the accused persons who ran away with his phone. The accused was wearing a white shirt and his associates one of which was wearing leather jacket and the other was also wearing jacket and a cap. He had informed the aforesaid description of the accused persons to the IO. There were around 15 to 20 persons in the park at that time. Police officials reached at the spot after one hour of the incident. He had met two police officials at the place of incident. He did visit the PS on the same day. He had not signed any documents at the place of incident. He had signed all the documents at the PS. He was not taken to the spot thereafter. He did not remember the documents he had signed on the date of incident. The accused was searched at the park as well as at the PS. He reached at his home around 6 pm on the date of incident. His parents were not at the spot when he was taken to the PS. He had provided his phone bill to the IO on the next date. No statement was taken on the same day.
(ii) PW2 Ct. Anil Kumar deposed before the court that on 19.12.2017, he alongwith ASI Vinod Kumar reached at the spot where they met one Rahul who produced the accused Vivek @ Vicky and handed him over to the IO alongwith help of other public persons who then went away from the spot without giving their names and addresses. Thereafter, IO State v. Vivek @ Vicky Page 3 FIR No.935/17 PS Uttam Nagar recorded the statement of the complainant and handed over the tehrir to him. He went to PS Uttam Nagar and got the case registered. He left the spot at about 3:40 pm for getting the case registered. He got the case registered and thereafter came back and handed over the copy of FIR and rukka. He came back alongwith ASI Dharamveer. Thereafter, second IO ASI Dharamveer conducted the investigation and the first IO left the spot. They searched for the co accused in Safeda Park, Sabji Mandi and other places but could not find the co accused. Thereafter, they came back to the PS where IO recorded his statement.
Witness correctly identified the accused before the court. In his cross examination by learned LAC for accused, it was stated by witness that both of them arrived at the spot on bike. He did not remember whether one handwritten complaint was given or IO recorded the statement. No family member of complainant was present at the spot. He did not remember whether the PCR caller was present at the spot. The first IO had searched the accused. He had gone back to PS on IO's motorcycle. He did not remember whether DD entry was made by the second IO while leaving the PS. Second IO came on his own bike. Disclosure statement, arrest memo were presented by the second IO and statement of complainant was recorded. He did not remember when IO told the complainant to leave the spot. The park was of the normal size. All documents were prepared at the spot. No public persons were present at the spot when he came back with second IO. Complainant was present when they searched for co accused. He did not remember how all three of them were traveling while searching for co accused. They reached back at the PS at about State v. Vivek @ Vicky Page 4 FIR No.935/17 PS Uttam Nagar 10 pm. Witness denied that all the proceedings were prepared in the PS.
(iii) PW3 ASI Vinod Kumar deposed before the court that on 19.12.2017 one PCR call was received. He alongwith Ct. Anil reached the spot where he met complainant Rahul who produced the accused Vivek @ Vicky and told that he had snatched his mobile and thereafter, with the help of public persons he had caught hold of accused Vivek @ Vicky. He recorded statement of complainant and prepared tehrir and got the FIR registered through Ct. Anil. Thereafter, ASI Dharambir came to the spot along with Ct. Anil. He presented the accused and complainant before ASI Dharambir. Thereafter, rest of the investigation was carried out by ASI Dharambir.
Witness correctly identified the accused before the court. In his cross examination by learned LAC for accused, it was stated by witness that he reached at the spot between 02:15 to 02:30 pm on his motorcycle alongwith Ct. Anil. He found the complainant at the spot who had apprehended the accused and public persons were present at the spot. He had frisked the accused at the spot. He had asked the description of other accused persons but the complainant failed to describe the same. He had asked the name and addresses of the public persons but they refused for the same. Another person who had made the call on 100 number was also present at the spot alongwith the complainant but he had not asked the details of those persons. He left the spot at around 5:10 pm only when the IO of the present case had reached at the spot. He did not remember on which State v. Vivek @ Vicky Page 5 FIR No.935/17 PS Uttam Nagar vehicle the IO had come at the spot. Ct. Anil also came alongwith IO. He did not know the vehicle which was used by Ct. Anil to take rukka to the PS. He did ask about the phone number of the parents of the complainant. He had not made any phone call to the parents of the complainant. IO of the present case had not prepared any document in his presence. When the IO reached at the spot, only the complainant alongwith the accused were present there. The spot where the incident had taken place was of medium size park.
(iv) PW4 ASI Dharambir deposed before the court that on 19.12.2017, he received the copy of FIR and rukka through duty officer which was marked to him for further investigation. He alongwith Ct. Anil went to the spot where he met ASI Vinod who handed over the accused Vivek @ Vicky and presented the complainant. Thereafter, he tried to join public persons to the investigation, however, they all went away without giving their names and addresses. He interrogated the accused. Thereafter, he arrested the accused and recorded his disclosure. He prepared site plan. He recorded supplementary statement of the complainant. Thereafter, he tried to search for the co accused but could not get any clue regarding their whereabouts. Thereafter, he came to PS alongwith accused and Ct. Anil. He recorded the statement of Ct. Anil. Accused was medically examined. Thereafter, he prepared chargesheet and filed the same in the court.
In his cross examination by learned LAC for accused, it was stated by witness that he reached at the spot around 04:45 PM by using his personal vehicle i.e. motorcycle alongwith Ct. Anil. No public State v. Vivek @ Vicky Page 6 FIR No.935/17 PS Uttam Nagar persons were present besides the complainant and accused at that time. He had made no inquiry regarding the person who had made call at 100 number. ASI Vinod left the spot after 5-10 minutes of his arrival. He had not contacted the parents of the complainant. He had not prepared any document in the presence of ASI Vinod. He had asked the description of other accused persons from the complainant. He left the place of incident around 6 pm for further investigation regarding the other accused persons. He alongwith the Ct. Anil and accused reached at the PS by his vehicle. Complainant was further called only once at the PS for the purpose of providing the copy of FIR. He did not remember the date on which the phone bill were provided by the complainant. He did not verify the bill of the said phone. He had not recorded any statement of the seller of the phone.
4. Thereafter, prosecution evidence was closed and statement of accused u/s 313 CrPC was recorded to which accused pleaded himself innocent but he did not prefer to lead any evidence in his defence. Thereafter, matter was listed for final arguments.
5. Ld. APP for the state has argued that the complainant/eye witness has duly identified the accused before the court. The prosecution successfully proved his case against the accused beyond reasonable doubt as the fact of crime, investigation procedure and identity of the accused has been proved with the help of oral and documentary evidence on record and no contradiction has arisen. Therefore, accused should be convicted.
State v. Vivek @ Vicky Page 7 FIR No.935/17 PS Uttam Nagar
6. The counsel for the accused has argued that accused has been falsely implicated in this case and there are contradictions in the statement of witnesses examined by prosecution. No other eye witness except the complainant was cited as witness or examined by prosecution despite availability of many public persons on the spot. Further, prosecution has not examined the witness who had called at 100 number regarding commission of offence.
7. As per section 356 IPC "whoever assaults or uses criminal force to any person, in attempting to commit theft on any property which that person is then wearing or carrying, shall be..."
The main ingredients to prove the said section are (i) there should be assault or criminal force (ii) there should be attempt to commit theft of property wearing or carrying by victim.
8. As per section 379 IPC "whoever commits theft shall be punished..."
As per section 378 theft is "whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moved that property in order to such taking, is said to commit theft.
9. I am of the considered opinion that the prosecution story is absolutely consistent regarding the time of incident, regarding statement of complainant and subsequent registration of FIR.
State v. Vivek @ Vicky Page 8 FIR No.935/17 PS Uttam Nagar
10.Testimony of the complainant and eye witnesses have efficacy and relevancy. They have no reasons to omit real culprit and implicate falsely the accused. It is a well settled law that once the eye version is given particularly by the complainant herself, the Court would normally rely upon such version of the prosecution unless it suffers from serious infirmities or improvements. (Balbir Singh V. State of Punjab, (P&H) 2003 Cri.L.J. 3148).
11.The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance.
12.In case State of Gujarat v. Bharwad Jakshibhai Nagribhai, (Gujarat) (DB) Cri.L.J. 2531 it was observed that while appreciating evidence of the witnesses it has to be kept in mind that their presence at the time and place of the occurrence cannot be doubted. They do not have any reason to omit real culprits and implicate falsely the accused persons.
13. In the case of Appabhai v. State of Gujarat, AIR 1988 SC 696 the Supreme Court has succinctly dealt with this aspect. The Court has held that the complainant should be considered to be the best eye- witness to the incident and the discrepancy in his evidence which does State v. Vivek @ Vicky Page 9 FIR No.935/17 PS Uttam Nagar not shake the basic version of the prosecution case may be discarded.
14.The identity of the accused has been duly established and the complainant Rahul who is complainant as well as eye witnesses of the offence committed, has supported the prosecution story. The accused was caught red handed on the spot. FIR has been proved and all the other documents have also been proved by the formal/police witnesses. Nothing has come on record to disbelieve the testimonies of witnesses. All the witnesses examined by the prosecution are found to be cogent and coherent.
15.In view of above discussion I am of the view that prosecution proved its case beyond reasonable doubt. Therefore, accused Vivek @ Vicky is convicted for the offence punishable u/s 356/379 IPC.
Now to come up for hearing on the point of sentence on 10.12.2018.
Announced in the open court (PURVA SAREEN)
on 4th December 2018 ACMM, SOUTH WEST, DWARKA COURT
NEW DELHI
Digitally signed
by PURVA
PURVA SAREEN
SAREEN Date:
2018.12.06
15:11:25 +0530
State v. Vivek @ Vicky Page 10
FIR No.935/17 PS Uttam Nagar